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Thread: Milwaukee Journal-Sentinal: West Allis man not guilty in open carry gun case

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    http://www.jsonline.com/news/crime/39722082.html

    West Allis man not guilty in open carry gun case
    By Linda Spice of the Journal Sentinel


    Posted: Feb. 17, 2009 12:26 p.m.

    A West Allis municipal judge today ruled in favor of a local man arrested for disorderly conduct after a neighbor complained that he was carrying a gun while planting a tree.

    Judge Paul Murphy found Brad Krause not guilty of disorderly conduct in a case that drew to a hearing numerous gun rights advocates to witness what may be the first open carry gun case heard in a Wisconsin courtroom.

    For Krause, however, the significance of the case extended beyond gun rights: It was an infringement on civil liberties, he said after today's decision.

    "The reason people are upset about this is it's not about guns. It's about civil liberties. And we obviously have a property issue. There was no warrant issued, no exigent circumstances, no permission to enter the property, yet the police stormed in with guns drawn and put my life at risk," Krause said. "My wife was very worried that she would be a widow in short order because I was planting a tree."

    West Allis police responded to Krause's home last August after a neighbor called to ask about the legality of him openly carrying a gun in a holster on his property. Police responded, arrested Krause and ticketed him for disorderly conduct, an offense he and his attorney, Steven Cain, fought during a court trial in December. Police also seized his gun.

    Cain said today, "The big overarching issue is whether open carry is legal. The law in Wisconsin really only limits concealed carry. The law in Wisconsin, as we see it, is that open carry is absolutely legal, protected, and should be."

    Cain argued that the U.S. Supreme Court last summer in the case of D.C. vs. Heller concluded that open carry is "an individual right that shouldn't be abridged by law enforcement. That's what the case is generally all about."

    In explaining why he was carrying a gun while planting a tree, Krause said, "There's no requirement to justify why you're able to exercise constitutional rights. I and everyone else are able to go to church, they're able to vote, they're able to speak their mind. Even though the city might not like it, we have that right."

    The case is also one that has been watched closely around the country, particularly by the co-founders of the Virginia-based OpenCarry.org, John Pierce and Mike Stollenwerk.

    Said Pierce: "Really, the larger issue is not even a gun rights issue. It's the issue of having a disorderly conduct statute that is a catchall statute for otherwise legal behavior."

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    http://www.jsonline.com/forums/39730232.html- comment on question: "What would you do if your neighbor was . . . ?

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    Regular Member TFred's Avatar
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    Story hits the Chicago Tribune... no doubt those poor folks in Chicago are scratching their heads and wondering "What!?"

    http://www.chicagotribune.com/news/c...0,369357.story

    Ah, I see it's an AP story... still...

    TFred

    chicagotribune.com
    West Allis judge says man could carry gun

    Associated Press

    4:00 PM CST, February 17, 2009

    WEST ALLIS, Wis.

    A West Allis municipal judge said a resident was within his rights to carry a gun while planting a tree on his property.

    Judge Paul Murphy found Brad Krause not guilty Tuesday of disorderly conduct in a case that has drawn the interest of gun rights advocates.

    "The reason people are upset about this is it's not about guns. It's about civil liberties. And we obviously have a property issue," Krause said after the hearing. "There was no warrant issued, no exigent circumstances, no permission to enter the property, yet the police stormed in with guns drawn and put my life at risk.

    "My wife was very worried that she would be a widow in short order because I was planting a tree."

    A message left for West Allis Police Chief Mike Jungbluth by The Associated Press was not immediately returned. West Allis City Attorney Scott Post declined to comment.

    Police responded to Krause's home in August after a neighbor called to ask about the legality of him openly carrying a hand gun in a holster on his property. Police arrested Krause, ticketing him for disorderly conduct. Police also seized his gun.

    "The big overarching issue is whether open carry is legal," Krause's attorney Steven Cain said. "The law in Wisconsin really only limits concealed carry. The law in Wisconsin, as we see it, is that open carry is absolutely legal, protected, and should be."

    Krause declined to explain why he was carrying a gun to plant a tree.

    "There's no requirement to justify why you're able to exercise constitutional rights," Krause said. "I and everyone else are able to go to church, they're able to vote, they're able to speak their mind. Even though the city might not like it, we have that right."

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    A bill in the SC legislature could be helpful in a case like this. A person reporting a frivilous crime such as the one here would have to pay the expenses.


    http://www.scstatehouse.gov/sess118_...bills/3028.htm

    SECTION 1. Section 17-1-40 of the 1976 Code, as last amended by Act 82 of 2007, is further amended to read:
    "Section 17-1-40. (A) A person who after beingis charged with a criminal offense and the charge is discharged, proceedings against the person are dismissed, or the person is found to be innocent of the charge, the arrest and booking record, files, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge may be retained by any municipal, county, or state law enforcement agency.
    (B) A municipal, county, or state agency may not collect a fee for the destruction of records pursuant to the provisions of this section.
    (C) If a judge dismisses the charge against a person or the person is found not guilty of the charge and the judge makes a finding that the charge is frivolous, the judge, in his discretion, may order court costs and other costs incurred by the person including, but not limited to, attorney's fees, public defender fees, and expungement fees to be paid by the person who brought the frivolous charge forward. The provisions of this subsection do not apply to law enforcement officers or officers of the court."
    SECTION 2. This act takes effect upon approval by the Governor.

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    Regular Member sccrref's Avatar
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    PT111 wrote:
    A bill in the SC legislature could be helpful in a case like this. A person reporting a frivilous crime such as the one here would have to pay the expenses.


    http://www.scstatehouse.gov/sess118_...bills/3028.htm

    SECTION 1. Section 17-1-40 of the 1976 Code, as last amended by Act 82 of 2007, is further amended to read:
    "Section 17-1-40. (A) A person who after beingis charged with a criminal offense and the charge is discharged, proceedings against the person are dismissed, or the person is found to be innocent of the charge, the arrest and booking record, files, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge may be retained by any municipal, county, or state law enforcement agency.
    (B) A municipal, county, or state agency may not collect a fee for the destruction of records pursuant to the provisions of this section.
    (C) If a judge dismisses the charge against a person or the person is found not guilty of the charge and the judge makes a finding that the charge is frivolous, the judge, in his discretion, may order court costs and other costs incurred by the person including, but not limited to, attorney's fees, public defender fees, and expungement fees to be paid by the person who brought the frivolous charge forward. The provisions of this subsection do not apply to law enforcement officers or officers of the court."
    SECTION 2. This act takes effect upon approval by the Governor.
    This is the only part that I have a problem with. This shoiuld apply to them as well. They are not the elite in America. Something about we are all equal or...

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    three cheers for the judge for doing the right thing

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    Regular Member sccrref's Avatar
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    A definite win for the good guys. Hopefully the civil suit (if one is filed) will result in a win too.

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    PT111 wrote:
    A bill in the SC legislature could be helpful in a case like this. A person reporting a frivilous crime such as the one here would have to pay the expenses.
    Someone who calls to ask "Is it legal if...{xyz}?", shouldn't be held accountable if {xyz} is not illegal, but the police respond as if it is.

    The SC bill has it exactly wrong: the reporting citizen who doesn't know it's legal shouldn't be charged, but the police who arrest someone and trump up false charges, should be.



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    sccrref wrote:
    A definite win for the good guys. Hopefully the civil suit (if one is filed) will result in a win too
    One can hope. A lesson needs to be taught.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    A great ending to a story that should have never been told. A modicum of restraint by police would have resulted in NONE of us ever hearing about it.

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    I was just wondering if he ever got his gun back?

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    KBCraig wrote:

    The SC bill has it exactly wrong: the reporting citizen who doesn't know it's legal shouldn't be charged, but the police who arrest someone and trump up false charges, should be.
    +1 Agreed.

    The individual officers should be paying for the costs out of their own pockets. This was an obvious case of "I have the power and you don't" abuse of authority.

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    Chkultr wrote:
    I was just wondering if he ever got his gun back?
    Not yet, there is a topic in the Wisconsin thread thet gets into the hows and whys of it all, please join us over there if you like.

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    Nutczak wrote:
    Chkultr wrote:
    I was just wondering if he ever got his gun back?
    Not yet, there is a topic in the Wisconsin thread thet gets into the hows and whys of it all, please join us over there if you like.
    Thanks

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    Regular Member TFred's Avatar
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    sccrref wrote:
    PT111 wrote:
    A bill in the SC legislature could be helpful in a case like this. A person reporting a frivilous crime such as the one here would have to pay the expenses.

    http://www.scstatehouse.gov/sess118_...bills/3028.htm

    SECTION 1. Section 17-1-40 of the 1976 Code, as last amended by Act 82 of 2007, is further amended to read:
    "Section 17-1-40. (A) A person who after beingis charged with a criminal offense and the charge is discharged, proceedings against the person are dismissed, or the person is found to be innocent of the charge, the arrest and booking record, files, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge may be retained by any municipal, county, or state law enforcement agency.
    (B) A municipal, county, or state agency may not collect a fee for the destruction of records pursuant to the provisions of this section.
    (C) If a judge dismisses the charge against a person or the person is found not guilty of the charge and the judge makes a finding that the charge is frivolous, the judge, in his discretion, may order court costs and other costs incurred by the person including, but not limited to, attorney's fees, public defender fees, and expungement fees to be paid by the person who brought the frivolous charge forward. The provisions of this subsection do not apply to law enforcement officers or officers of the court."
    SECTION 2. This act takes effect upon approval by the Governor.
    This is the only part that I have a problem with. This shoiuld apply to them as well. They are not the elite in America. Something about we are all equal or...
    I agree, when you consider who it is that brings most frivolous charges, this bill only addresses about 1% of the problem!

    TFred

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    I've got a guy who's a "Department of Homeland Security" mid-management hack across the street from me in my politically correct subdivision. H'e called the Police on me before, and would undoubtedly do it again. Especially if I exercised any rights he feels are/is reserved for him.

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